MAHADEO Vs. BALESHWAR PRASAD

JUDGEMENT

(1.) This and the connected F.A. No. 369 of 1931 arise out of two suits instituted by the appellants in the Court of the Additional Subordinate Judge, Ballia, for possession of two tracts of land which were the subject of fluvial action of the river Sarju. The plaintiffs and the defendants second party are the zamindars of village Bansthana, which lies on the south of the river Sarju (which should not be confused with the well-known river Sarju or Ghagra) in the district of Ballia. The defendants first party in the suit giving rise to this appeal are the zamindars and tenants of village Sagarpali, which lies to the north of that river. In the suit which gave rise to E.A. No. 369 of 1931 the plaintiffs and the defendants second party are the same; but defendants first party are the zamindars and tenants of village Bagheji also lying on the north of the river. The plaintiffs claim 68 bighas odd against the proprietors of village Sagarpali. These are specified in list (c) appended to the plaint. In the other suit they claimed 18 bighas odd against the proprietors of village Bagheji. In both suits the allegations are the same. It is alleged that the lands in dispute formed part of the plaintiffs village Bansthana, and that in 1916 the river changed its course receding to the south with the result that the lands in dispute were transferred from the south to the north of the river. Lists (a) and (b) in the plaints of both the suits give the numbers of village Bansthana before they became the subject of fluvial action of the river, while list (c) gives the present numbers which were assigned when the plots were treated as parts of the villages Sagarpali and Bagheji. The only difference between the plots mentioned in lists (a) and (b) is that the latter are said to be under water, while the former are dry. In anticipation of the defence it was alleged in the plaint that the deep stream rule did not apply to the riparian villages in question.

(2.) Both the suits were contested by the defandants first party on identical grounds. Their principal pleas were that there was an immemorial custom under which the village Bansthana on the south and the villages Hagarpali and Bagheji on the north extended up to the midstream, wherever it might be, so that if by fluvial action land was transferred from one side to the other, it must belong to the village to which it accreted and which must extend up to the midstream. Briefly stated, the defence is that midstream is the constant boundary between the plaintiffs village and those of the defendants, whatever changes, sudden or gradual, may take place in the flow of the river. It was also pleaded that the land in dispute formed part of the defendants villages in 1197 Fasli (1790 A.D., and continued to be part thereof till 1289-F (1881-82 A.D.), and that if some time or other the lands were numbered in the village Bansthana but subsequently reappeared on the defendants side, the latter's right was not affected. It was denied by the defendants that any land was transferred from north to south in 1916 as is alleged by the plaintiffs. Whatever land was transferred from the south to the north was due, according to the defendants, to gradual and imperceptible action of the river towards the south. Apparently this was intended to be an alternative defence, based on the view which prevailed till recently, that where land is added by the gradual and imperceptible action of a river, it belongs to the proprietors of that village to which it accretes, even though the land is identifiable by careful measurement. Limitation and adverse possession were also pleaded by the defendants. On the above pleas the lower Court framed the following issues: (1) Whether the custom exists, as alleged in para. 4 of the plaint, that the change of the river effects no change in the ownership, or whether the custom of dhara dhura exists, as alleged by the defendants? (2) If the latter, had the land in dispute been suddenly cut away by a sudden change of the river or had the land appeared by slow and gradual accretion, and what is its effect on the rights of the parties? (3) Was the land in suit, or any portion of it, part of the village Sagarpali, which by the change of the course of the river Sarju had gone towards Bansthana and again reappeared towards Sagarpali? (4) Has the river Sarju been the constant boundary between the two villages Sagarpali and Bansthana and between Bagheji and Bansthana? (5) Is the suit barred by limitation under Articles 142 and 144? (6) Is me sun barred by estoppel? (7) Is the suit bad for non-joinder or mis-joinder of parties? (8) Are the plaintiffs entitled to possession as in relief A and declaration as in relief B, and mesne profits, and if so to how much and against which of the defendants?

(3.) The lower Court found against the plaintiffs on all the issues noted above and dismissed the suit. The most important issue to which the major part of its judgment is devoted is the one relating to the custom set up by the defendants. It will be seen that issue 4 is covered by issue 1. The lower Court has recorded no separate finding on issue 4 and should be taken to have dealt with both the issues together. We propose to do the same. The law on the subject has been restated by their Lordships of the Privy Council in Maharaja of Dumraon V/s. Secretary of State . A Bench of this Court has interpreted it in Sri Krishna Dutt V/s. Ahmadi Bibi . The view accepted on these cases is that, if the land in dispute is identifiable with reference to its physical features, land marks or by measurement, it should be deemed to continue to belong to the former owner, whether its transfer from one side of the river to the other was by a sudden change in the course of the river or was the result of the river gradually receding on one side and throwing up land on the other, unless a custom to the contrary is established. In this view, the burden of proving custom lies on the party who claims the land by accretion. The learned Subordinate Judge, who found against the plaintiffs on the question of custom, also held on issue 2 as follows: I hold that the land had slowly and gradually accreted and that the land in dispute had not been suddenly cut away by a sudden change in the course of the river. The result is that Clause 2 of Section A does not apply, and hence even if the land or any portion of it be identified as the land of Bansthana of 1882 as being in the same latitude and longitude, the people of Bansthana have lost their right over it, and the ownership thereof vests in the defendants, zamindars of Sagarpali and Bagheji.